THE PEOPLE, Plaintiff and Respondent, v. KENNY INKWON LEE, Defendant and Appellant.
B323940
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
Filed 9/27/23
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BA079332)
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Kenny Inkwon Lee appeals from the denial of his resentencing petition under
Subsequently, the Legislature amended
Lee filed his second petition under the amended statute, seeking resentencing for his murder and attempted murder convictions. He contended, inter alia, that the jury instructions at his trial permitted him to be convicted solely on the malicious provocative acts of his confederates in the underlying robbery, without any findings as to Lee‘s mental state. The resentencing court denied his petition without an evidentiary hearing, finding Lee was ineligible for relief as a matter of law.
Although recent case law, including our opinion addressing Lee‘s first petition, has held that a conviction for provocative act murder requires proof that the defendant personally harbored the mental state of malice, our review of the history of the provocative act doctrine reveals this was not the case when Lee was convicted in 1994. Under the then-applicable Supreme Court authority, a defendant could be convicted for a killing by a third party provoked by an accomplice‘s actions with malice aforethought, regardless of the defendant‘s personal mental state. Lee‘s jury was so instructed. We therefore conclude Lee may have been convicted under a theory of imputed malice, and thus, he is not barred as a matter of law from relief under
We reject Lee‘s contention, however, that he is entitled to relief for his attempted murder conviction, which did not implicate the provocative act doctrine nor any theory of imputed malice.
Accordingly, we affirm in part, reverse in part, and remand for the resentencing court to issue an order to show cause regarding Lee‘s murder conviction.
BACKGROUND
1. Facts as summarized in our opinion from Lee‘s direct appeal
We quote the factual summary from our 1996 opinion addressing Lee‘s appeal from his conviction. (People v. Lee (May 28, 1996, B088132 [nonpub. opn.] (Lee I).) As we address in our Discussion, post, we no longer can rely on factual summaries from prior appellate opinions to determine eligibility for resentencing in
“Three men arrived at a shopping center in a red sports car. While the driver (Chul Woong Choi) waited in the car, Lee and Joo Hyung Woo got оut and went into a video store. Outside, a suspicious security guard (Agustin Nolasco) started to write down the sports car‘s license number. Inside, Lee and Woo pointed guns at the video store‘s two employees, dragged them to the back of the store, beat them, and took their money and personal belongings. Lee and Woo then ransacked the store and took money from the cash register.” (Lee I, supra, B088132.)
“Impatient, Choi (who was also carrying a gun) got out of the sports car, tried to open the door to the video store, and yelled to Lee and Woo, ‘Hey, let‘s go.’ As Lee and Woo ran out of the store, Nolasco (the guard) stepped out of his car and yelled (in English), ‘What‘s going on?’ In response, Lee and Choi pointed their guns at Nolasco and Nolasco, in turn, ducked down behind his open car door and grabbed his gun from his car. Lee and Woo got into the sports car and when Nolasco raised his head to see what was going on, Choi (then halfway into the driver‘s seat of the sports car) fired a shot at Nolasco. Nolasco shot back twice, hitting Choi. Lee (who was sitting next to Choi) stepped on the accelerator and, whilе shooting at Nolasco, drove slowly out of the parking lot.” (Lee I, supra, B088132.)
“Nolasco ran into the video store, made sure everyone was all right, then went back outside where he found Choi‘s dead body face down on the ground where he had been dumped by Lee and Woo.” (Lee I, supra, B088132.)
2. Trial, conviction, and appeal
A jury convicted Lee of the first degree murder of Choi, the attempted murder of Nolasco, two counts of robbery, and one count of receiving stolen goods, and found firearm enhancements true. The trial court sentenced Lee to 28 years to life for the murder, to run concurrently with a determinate sentence of 16 years 4 months for the other counts.
We affirmed the judgment. (Lee I, supra, B088132.) We rejected, inter alia, Lee‘s argument that the evidence was insufficient to convict him for the murder of his accomplice Choi under the provocative act doctrine. Lee contended on appeal that the evidence showed that Choi, not Lee, provoked
3. First resentencing petition and appeal
In February 2019, Lee filed a petition for resentencing pursuant to
Lee appealed the denial of his petition, and we affirmed. (People v. Lee (2020) 49 Cal.App.5th 254 (Lee II).) The appellate record as to that petition did not contain any of the trial or appellate record pertaining to Lee‘s original conviction, including any jury instructions. (Id. at pp. 258, fn. 2, 260, fn. 3.) At Lee‘s request, we took judicial notice of our 1996 opinion from Lee‘s original appeal. (Id. at p. 258, fn. 2.) We concluded our opinion from the original appeal “provides sufficient information to resolve this appeal.” (Id. at p. 260, fn. 3.)
In acсordance with decisions from this division and others, we first held that when the resentencing court assessed whether Lee had made a prima facie showing for relief under
As to the merits of Lee‘s petition, we held Lee was ineligible for relief because he had not been convicted under either the felony-murder rule or the natural and probable consequences doctrine, but instead, under the provocative act doctrine. (Lee II, supra, 49 Cal.App.5th at pp. 257–258.) We distinguished provocative act murder from the other two
The Supreme Court granted review of our decision and held it pending a decision in People v. Lewis. (July 15, 2020, S262459.) The high court subsequently issued its Lewis decision, holding that a petitioner under
The Supreme Court then dismissed review in Lee II, ordering our decision noncitable and nonprecedential to the extent our decision was inconsistent with Lewis. Because Lewis did not address the provocative act doctrine, our holding that Lee‘s murder conviction under that theory was ineligible for resentencing remained intact.
4. Second resentencing petition
The Legislature amended
Lee‘s arguments in reply included that the particular instructions given to Lee‘s jury “d[id] not establish whether Mr. Lee‘s malice was imputed to him based solely on his participation in the underlying robbery and the provocative act of a co-perpetrator, or whether [Lee] was himself a provocateur.”
Lee timely appealed. We requested and received supplemental briefing regarding the development of the law of provocative act murder, including whether at the time of Lee‘s conviction, a conviction for provocative act murder required proof that the defendant personally harbored the mental state of malice, or whether the defendant could be convicted based on provocation by an аccomplice who acted with express or implied malice.
DISCUSSION
A. Senate Bill Nos. 1437 and 775
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015) amended
The bill also added
In 2021, the Legislature passed Senate Bill No. 775 (2020–2021 Reg Sess.) (Stats. 2021, ch. 551), amending
If a petitioner makes a prima facie showing of relief under
If, however, the record of conviction or the court‘s own documents indicate the petitioner is ineligible for resentencing as a matter of law, the resentencing court may deny the petition without issuing an ordеr to show cause. (See Lewis, supra, 11 Cal.5th at p. 971 [“The record of conviction will necessarily inform the trial court‘s prima facie inquiry . . ., allowing the court to distinguish petitions with potential merit from those that are clearly meritless.“].) In relying on the record of conviction at the prima facie stage, however, the resentencing court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ [Citation.]” (Id. at p. 972.) Such factfinding, instead, must take place following an evidentiary hearing. (People v. Harden (2022) 81 Cal.App.5th 45, 51 (Harden).)
“We independently review a trial court‘s determination on whether a petitioner has made a prima facie showing.” (Harden, supra, 81 Cal.App.5th at p. 52.)
B. Lee‘s Murder Conviction Does Not Bar Him as a Matter of Law From Relief Under Section 1172.6
Because the version of
Now, however,
Although we concluded in Lee II that conviction for provocative act murder “‘requires proof that the defendant personally harbored the mental state of malice‘” (Lee II, supra, 49 Cal.App.5th at p. 264), our review of the case law indicates this element is a fairly recent development of the past 15 years or so. As we explain, and as the Attorney General concedes, at the time of Lee‘s conviction, the law was different, and an accomplice could be convicted so long as his confederate committed a malicious and provocative act, regardless of the defendant‘s personal mental state. Thus, Lee‘s conviction under the provocative act doctrine does not, as a matter of law, bar relief under
We begin with a summary of the case law developing the provocative act doctrine.
1. Provocative act murder
a. Washington and Gilbert
The provocative act murder doctrine arose from two Supreme Court cases authored by Chief Justice Traynor and decided within months of one another, People v. Washington (1965) 62 Cal.2d 777 (Washington), and People v. Gilbert (1965) 63 Cal.2d 690 (Gilbert), reversed on other grounds in Gilbert v. California (1967) 388 U.S. 263.
In Washington, the court held that a defendant could not be convicted of murder under the felony-murder rule for the death of his accomplice at the hands of an intended robbery victim. (Washington, supra, 62 Cal.2d at pp. 779, 783.) The court explained that, as codified in
In reaching this сonclusion, the court noted that “[a] defendant need not do the killing himself . . . to be guilty of murder,” and could be “vicariously responsible under the rules defining principals and criminal conspiracies.” (Washington, supra, 62 Cal.2d at pp. 781–782.) “All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design.” (Id. at p. 782.)
The court further observed that defendants also could be found guilty of murder for “initiat[ing] gun battles . . . if their victims resist and kill. Under such circumstances, ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death’ [citation], and it is unnecessary to imply malice by invoking the felony-murder doctrine.” (Washington, supra, 62 Cal.2d at p. 782.) The court did not address whether this principle might apply to the defendant in Washington, and instead reversed his murder conviction. (Id. at pp. 784-785.)
Gilbert involved the gun battle fact pattern contemplated in Washington. Gilbert, a bank robber, opened fire at police, who fired back, killing his accomplice, Weaver. (Gilbert, supra, 63 Cal.2d at pp. 696–697.) Gilbert was convicted of Weaver‘s murder, as was another confederate, King, who was not present at the robbery or gun battle, but who assisted with obtaining Gilbert‘s and Weaver‘s getaway vehicle. (Id. at pp. 698, 703.)
Citing Washington, the Supreme Court reversed Gilbert‘s and King‘s convictions for Weаver‘s murder: “Although the evidence in the present case would support a conviction of first degree murder on the ground that Weaver was killed in response to a shooting initiated by Gilbert, the [trial] court did not instruct the jury on that ground, but gave an erroneous instruction that defendants could be convicted of murder for that killing without proof of malice and solely on the ground that they committed a robbery that was the proximate cause of their accomplice‘s death.” (Gilbert, supra, 63 Cal.2d at pp. 703–704.)
Second, “[t]he killing must be attributable to the act of the defendant or his accomplice. When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.” (Gilbert, supra, 63 Cal.2d at p. 704.)
Third, “[v]icarious criminal liability. Under the rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design.” (Gilbert, supra, 63 Cal.2d at p. 705.)
Fourth, “[w]hen murder is established under Penal Code sections 187 and 188 pursuant to the principles defined above, section 189 may properly be invoked to determine the degree of that murder. Thus, even though malice aforethought may not be implied under section 189 to make a killing murder unless the defendant or his accomplice commits the killing in the perpetration of an inherently dangerous felony [citations], when a murder is otherwise established, section 189 may be invoked to determine its degree.” (Gilbert, supra, 63 Cal.2d at p. 705.)
Although the term was not used in Washington or Gilbert, later cases have referred to the theory of murder defined by the above principles as “provocative act murder.” (See, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 839 & fn. 3; In re Aurelio R. (1985) 167 Cal.App.3d 52, 57.)
b. Accomplice liability for provocativе act murder after Gilbert
Although Gilbert established that provocative act murder, unlike felony murder, requires proof of malice aforethought, under that case it was sufficient that only the provocateur him- or herself—the perpetrator who initiates the gun battle, for example—acts with that mental state. The
The Supreme Court confirmed in subsequent cases that a defendant could be guilty of provocative act murder based on the malicious and provocative acts of his confederates, without a showing that the defendant himself harbored malice. In Taylor v. Superior Court (1970) 3 Cal.3d 578 (Taylor I), overruled on other grounds by People v. Antick (1975) 15 Cal.3d 79 (Antick), liquor storе employees shot at two robbers, Smith and Daniels, killing Smith. (Taylor I, at p. 581Ibid.) Taylor and Daniels were charged with Smith‘s murder. (Id. at p. 580Id. at pp. 580-581.)
The Supreme Court held the murder charge was proper. (Taylor I, supra, 3 Cal.3d at p. 585.) Citing Gilbert and Washington, the court stated that “if [Taylor] were an accomplice to the robbery, he would be vicariously responsible for any killing attributable to the intentional acts of his associates committed with conscious disregard for life, and likely to result in death.” (Id. at pp. 582–583, fn. omitted.) The court concluded the evidence from the preliminary hearing “discloses acts of provocation on the part of Daniels and Smith from which the trier of facts could infer malice,” and therefore “the evidence supported the magistrate‘s finding that reasonable and probable cause existed to charge [Taylor] with first degree murder.” (Id. at pp. 584-585 mental state or whether any of his own actions demonstrated malice.
Taylor‘s case returned to the Supreme Court following his conviction. (People v. Taylor (1974) 12 Cal.3d 686, 688, fn. 2 (Taylor II), overruled on other grounds by People v. Superior Court (Sparks) (2010) 48 Cal.4th 1 (Sparks).) The Supreme Court summarized its earlier Taylor I holding, stating that Taylor “might . . . be found guilty [of Smith‘s murder] on a theory of vicarious liability if it independently appeared that his confederates entertained malice aforethought [citation].” (Taylor II, at p. 691, italics added.) Taylor‘s accomplice Daniels
In Antick, supra, 15 Cal.3d 79, the Supreme Court held when the deceased himself is the sole provocateur, his nonprovocateur accomplice cannot be liable for murder because the provocateur did not cause the death of another but only his own death. (Id. at p. 91.) In dicta, however, the court provided an example demonstrating when a nonprovocateur accomplice would be liable for murder. The court posited a robbery committed by three perpetrators, the first of whom initiates a gun battle that results in the death of the second perpetrator. (Id. at p. 88.) The court explained that the first robber has “commit[ted] a homicide,” because his conduct initiating the gun battle both established malice and was the proximate cause of the second robber‘s death. (Ibid.) Further, because “the robber initiating the gun battle is acting in furtherance of the common design of all three participants, the third robber as well may be held vicariously liable for the murder.” (Id. at p. 89.)
In People v. Caldwell (1984) 36 Cal.3d 210, the Supreme Court rejected an argument that provocative act murder, like felony murder, “‘impos[ed] malice as to one crime because of [a] defendant‘s commission of another . . . .’ [Citations.]” (Id. at pp. 222-223.) The court nonetheless reaffirmed that provocative act murder required that only one of several cofelons act with malice. The court explained, “[t]he proper focus on the individual culpability of accomplices is retained by the requirement that one or more of them engage in conduct” demonstrating implied malice. (Id. at p. 223, italics added.) “Only where one or more of the co-felons has thus exhibited a culpable, murderous state of mind does a resulting death predicate liability for murder.” (Ibid., italics added.)
Court of Appeal decisions establish that at the time of Lee‘s conviction in 1994, and for some years after, the principles of nonprovocateur liability first established in Gilbert and developed in Taylor I and Antick remained good law, including that a nonprovocateur defendant could be convicted of murder based on a finding that his provocateur accomplice acted with malice aforethought.
For example, in People v. Mai (1994) 22 Cal.App.4th 117 (Mai), disapproved on other grounds by People v. Nguyen (2000) 24 Cal.4th 756, the court explained that under the provocative act doctrine, “it is a life-endangering act by a defendant or surviving cofelon that supplies the requisite implied malice to support a murder conviction.” (Mai, at p. 125, italics added.) Mai favorably cited Taylor I, and explained, “[E]ven when the defendant on trial did not participate in the provocative act, he or she is nevertheless vicariously responsible for the surviving accomplice‘s conduct and may be convicted of murder in the death of the accomplice who is killed.” (Id. at pp. 127–128 & fn. 9.) Mai posited a hypothetical akin to that of Antick, in which a getaway driver, despite having “engaged in no life-endangering conduct,” was “vicariously liable” when a co-perpetrator opened fire on a security guard, who shot back and killed a third accomplice. (Id. at pp. 127-128, fn. 9.)
People v. Garcia (1999) 69 Cal.App.4th 1324 similarly relied on Taylor I for the proposition “that a nonprovocateur defendant could be charged with murder under the provocative act theory based on vicarious liability.” (Garcia, at p. 1331, fn. 4.)
c. Concha, Gonzalez, and Mejia
People v. Concha (2009) 47 Cal.4th 653 (Concha) was the first case in which our Supreme Court discussed provocative act murder in terms of the individual mental states of multiple surviving accomplices, in that case to analyze if, and under what conditions a defendant could be liable for willful, deliberate, and premeditated provocative act murder. In Concha, three men, Concha, Hernandez, and Sanchez, attempted to murder a fourth man, Harris. (Id. at p. 658Ibid.) The jury convicted Concha and Hernandez of the first degree attempted murder of Harris, and the first degree murder of Sanchez under the provocative act doctrine. (Id. at p. 659 was whether a killing by a third party in response to an attempted murder could support a first degree, as opposed to second degree murder conviction of the surviving perpetrators. (Id. at pp. 658, 660.)
The Supreme Court concluded yes, so long as the jury found “that the individual defendant personally acted willfully, and with deliberation and premeditation during the attempted murder.” (Concha, supra , 47 Cal.4th at p. 666.) The court noted that, under
The court stated, “[A] defendant is liable for murder when the actus reus and mens rea elements of murder are satisfied. The defendant or an accomplice must proximately cause an
unlawful death, and the defendant must personally act with malice. Once liability for murder is established in a provocative act murder case or in any other murder case, the degree of murder liability is determined by examining the defendant‘s personal mens rea and applyingThe court concluded the trial court had erred by failing to instruct the jury “that for a defendant to be found guilty of first degree murder, he personally had to have acted willfully, deliberately, and with premeditation when he committed the attempted murder.” (Concha, supra, 47 Cal.4th at p. 666.) The court remanded the case to the Court of Appeal for a determination whether the instructional error was prejudicial.6 (Concha, at p. 666.)
Although Concha concerned the circumstances in which a provocative act murder could be elevated to first degree murder, its language indicated more broadly that a murder conviction, whether first or second degree, requires proof of a defendant‘s individual mental state. (See Concha, supra, 47 Cal.4th at p. 663 [“The defendant or an accomplice must proximately cause an
In People v. Gonzalez (2012) 54 Cal.4th 643 (Gonzalez), our high court cited Concha for the broader principle that all provocative act murder requires proof that the defendant personally harbored malice: “A murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused an unlawful killing.” (Gonzalez, at p. 655, citing Concha, supra, 47 Cal.4th at pp. 660-661.)
Similarly, in People v. Mejia (2012) 211 Cal.App.4th 586, our colleagues in Division Eight wrote: “With respect to the mental element of provocative act murder, a defendant cannot be vicariously liable; he must personally possess the requisite mental state of malice aforethought when he either causes the death through his provocative act or aids and abets in the underlying crime the provocateur who causes the death.” (Id. at p. 603, citing Concha, supra, 47 Cal.4th at pp. 660, 662-663.)
2. Lee was convicted of murder under a theory in which malice could have been imputed to him based solely on his participation in a robbery
As summarized above, until Concha, the Supreme Court had not separated out the mens rea of individual defendants in provocative act murder cases. Instead, the case law imposed culpability on all perpetrators of the underlying crime so long as the provocateur acted with malice, and did so in furtherance of the common criminal design. (Antick, supra, 15 Cal.3d at p. 89; Taylor I, supra, 3 Cal.3d at pp. 582-583; Gilbert, supra, 63 Cal.2d at pp. 704-705.)
This was the law in effect at the time of Lee‘s conviction in 1994, 15 years before Concha. That law is reflected in the instructions given to Lee‘s jury, which stated, “A homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in a reasonable response to an intentional provocative act likely to cause death by a perpetrator of the crime who is not the homicide victim, is considered in law to be an unlawful killing by the perpetrators of the crime. Malice is implied when the prоvocative life-threatening act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.”
The instruction continued, in relevant part, “In order to prove such crime, each of the following elements must be proved: [1] 1. The crime of robbery
Consistent with Gilbert, Taylor I, and Antick, these instructions did not require the jury to find that Lee personally acted with maliсe. Rather, the instructions allowed the jury to convict Lee of murder if “[t]he crime of robbery was committed,” and “[d]uring the commission of such crime, . . . another surviving perpetrator . . . intentionally committed a provocative life-threatening act . . . [1] . . . with knowledge of the danger to and with conscious disregard for human life.” Read this way, the instruction allowed a conviction without a finding as to Lee‘s personal mental state.
It is therefore conceivable that the jury found Lee guilty of murder not based on his own malicious conduct, but on that of a surviving co-perpetrator. In so doing, the jury would have imputed malice to Lee solely based on his participation in the underlying robbery. Although permissible in 1994, Lee “could not presently be convicted of murder” on this basis in light of Senate Bill No. 1437. (
We recognize that under the facts as summarized in Lee I, the only two provocatеurs were Lee and his deceased co-perpetrator Choi. There is no indication in that opinion that the other surviving perpetrator, Woo, committed any provocative act. After Senate Bill No. 775, however, “the factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner‘s eligibility for resentencing.” (Flores, supra, 76 Cal.App.5th at p. 988;
We further acknowledge that, in addition to Lee II, several courts, including this division, have held that defendants convicted of provocative act murder were ineligible as a matter of law for resentencing under former section 1170.95 or section 1172.6. (People v. Antonelli (2023) 93 Cal.App.5th 712, 715 (Antonelli); People v. Mancilla (2021) 67 Cal.App.5th 854, 859 (Mancilla); People v. Johnson (2020) 57 Cal.App.5th 257, 271 (Johnson); People v. Swanson (2020) 57 Cal.App.5th 604, 608 (Swanson).)
We note that all but one of those cases were decided before Senate Bill No. 775 expanded relief under then section 1170.95 beyond those convicted of felony murder or murder under the natural and probable consequences doctrine. Thus, to the extent those pre-Senate Bill No. 775 holdings were based on the fact that a defendant convicted of provocative act murder had not been convicted under felony murder or natural or probable consequences theories, those cases, like Lee II, were correctly decided.
To the extent those opinions suggest that a jury convicting a defendant of provocative act murder has necessarily found that the defendant personally harbored a mental state of malice, we disagree as to convictions predating Concha.7 The opinions relied on Gonzalez, Concha, and/or Mejia for the proposition that provocative act murder requires proof that the defendant personally harbored a mental state of malice. (Antonelli, supra, 93 Cal.App.5th at p. 720; Mancilla, supra, 67 Cal.App.5th at p. 866; Johnson, supra, 57 Cal.App.5th at p. 271; Swanson, supra, 57 Cal.App.5th at p. 613.) The cases do not address the earlier case law imputing malice to nonprovocateurs based on the malicious acts оf their confederates, or discuss how the law has shifted after Concha. Those cases therefore provide no basis to question our analysis of pre-Concha case law.
The Attorney General in his supplemental brief concedes that “[a]t the time of [Lee‘s] conviction in 1994, the case law on provocative act murder did not clearly require that nonprovocateur accomplices in a provocative act murder personally harbor the mental state of malice as long as any of the accomplices (i.e., the provocateur) acted with express or implied malice.” The Attorney General nonetheless argues defendants convicted of provocative act murder fall outside the ambit of
The question presented by
To conclude otherwise would thwart the intent of
The Attorney General further argues we should stand by our holding in Lee II as law of the case. ” ’ “The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . ., and this although in its
Senate Bill No. 775, which expanded former section 1170.95 to include defendants convicted under any theory in which malice is imputed based on their participation in a crime, modified the controlling rules of law and constitutes a significant change in circumstances.
Before that expansion, we had no reason to analyze the history of provocative act murder beyond concluding that it required proof of malice, thus distinguishing it from felony murder and natural and probable consequences murder. After Senate Bill No. 775, we must look further to determine whether the defendant convicted of provocative act murder personally harbored malice, or had that malice imputed to him based on the malicious acts of his confederate. Thus, the doctrine of law of the case does not apply.9
3. The prosecutor‘s closing argument at trial does not establish as a matter of law that Lee was convicted under a valid theory
The Attorney General argues in his supplemental brief that when Lee‘s jury instructions are “considered together with the prosecutor‘s closing argument,” it is evident “that appellant himself was alleged to be a provocateur who acted with malice,” and therefore that Lee was convicted under a still-valid
a. Additional background
The prosecutor gave her closing argument before the trial court had instructed the jury on the offenses, including murder. In summarizing the anticipated instruction for provocative act murder, the prosecutor stated the jury must find “that this defendant intentionally committed a provocаtive life threatening act . . . deliberately performed with knowledge of its danger and with a conscious disregard for human life.” Further, the jury must find “this defendant‘s provocative act was a substantial factor in the death of victim Choi.”
The prosecutor then addressed whether Lee “intentionally commit[ted] a provocative life threatening act,” and argued that “pulling a gun and pointing [it] at somebody” satisfied this requirement.
The prosecutor continued, “[W]as the act deliberately performed with the knowledge of the danger and with a conscious disregard for human life? . . . [I]f he intentionally pulled the gun and pointed it, you can bet your boots that he did it on purpose, it was deliberate, and that he did it and didn‘t care what would happen to Agustin Nolasco. [1] . . . The question is when somebody pulls a gun, a reasonable person and points it at somebody, do you know that someone could get hurt if you do that? Yeah. That‘s a conscious disregard for human life. [1] Did he do it on purpose? Yeah. Maybe it was a reflex reaction, but you know you‘re doing it when your hand goes up and the gun is extended.”
The prosecutor asked the rhetorical question, “What did Agustin Nolasco dо when this defendant and the victim [Choi] drew their guns? He reached down for his gun immediately and came back up.... But for this defendant pointing his gun, Agustin Nolasco wouldn‘t have gone for his gun.”
The prosecutor emphasized to the jury that they could not consider victim Choi‘s actions, and “[i]f Charlie Choi was the only person that had done something [provocative], we wouldn‘t be talking about murder.” After further argument, the prosecutor stated, “[B]ut you have to remember that there were
Lee‘s counsel in closing challenged the evidence that Lee pointed a gun at Nolasco, or that Nolasco opened fire because Lee had a gun in his hand. Counsel also disputed that pointing a gun was in all instances an act likely to cause death, or that Lee, if he did point a gun, thought it would provoke a lethal response.
b. Analysis
The Attorney General contends, based on the prosecutor‘s closing argument, “that the sole theory of murder offered to the jury was that [Lee] must have personally committed а provocative act, and thus the jury had to find that he personally harbored malice. A nonprovocateur theory was not offered. Therefore, the trial court properly found that appellant was ineligible for resentencing relief as a matter of law under section 1172.6.”
We acknowledge that the prosecutor in closing proceeded solely on the theory that Lee personally committed a provocative act, with no suggestion that he was liable because of a provocative act committed by someone else. The jury instructions, however, were not so limited, and permitted the jury to convict Lee based on the act of a surviving accomplice. We do not know if, based on the evidence, the jury might have convicted Lee on this latter theory, because we do not have the full record before us. We therefore are unwilling to conclude, based solely on the prosecution‘s closing argument and summary of the evidence, that the jury necessarily convicted Lee as a provocateur as opposed to a nonprovocateur accomplice.
The Attorney General cites People v. Estrada (2022) 77 Cal.App.5th 941 (Estrada) as an example of a reviewing court relying in part on the prosecution‘s closing argument to conclude a petitioner was ineligible for relief under former section 1170.95. Estrada is distinguishable and does not undercut our conclusion.
The court in defendant Estrada‘s original trial, when giving a general instruction on aiding and abetting liability, erroneously inserted bracketed language referencing the natural and probable consequences doctrine, although the prosecutor was not proceeding on that theory. (Estrada, supra, 77 Cal.App.5th at p. 948.) On this basis, as well as statements in the prosecutor‘s closing argument, Estrada argued he might have been convicted under a now-invalid theory and was eligible for relief under former section 1170.95. (Id. at p. 946.)
Second, the court in Estrada‘s original trial never provided the complete instructions on natural and probable consequences, only the erroneous language inserted into the general instruction on aiding and abetting liability. (Estrada, supra, 77 Cal.App.5th at p. 947Ibid.)
The appellate court also cited Supreme Court authority holding that an erroneous natural and probable consequences instruction is harmless when “the prosecutor never requested instructions identifying and describing the target offense, . . . and the prosecutor argued to the jury that the defendants intended to commit all the charged offenses, so there was no reasonable likelihood the jury misunderstood or misapplied the law.” (Estrada, supra, 77 Cal.App.5th at p. 948, citing People v. Letner and Tobin (2010) 50 Cal.4th 99, 183-184.) In Estrada‘s original trial, as in Letner and Tobin, the prosecution had not requested instructions regarding target offenses, and had argued Estrada had intent to commit all charged offenses. (Estrada, at p. 948.) Finally, the appellate court rejected Estrada‘s argument that the prosecution‘s closing argument implicitly urged a natural and probable consequences theory. (Id. at pp. 948-949.)
Estrada does not help the Attorney General because the Court of Appeal in that case did not rely solely on the prosecutor‘s closing argument to conclude Estrada had been convicted under a valid theory. First and foremost, there had been a prior judicial finding in Estrada‘s direct appeal that he had acted with intеnt to kill. Second, Estrada‘s jury had never been fully instructed on the natural and probable consequences doctrine, but received only an erroneous fragment, the significance of which was weakened by other, correct instructions. In addition, the prosecutor never argued the natural and probable consequences theory to the jury. The appellate court concluded “there was no reasonable likelihood the jury misunderstood or misapplied the law.” (Estrada, supra, 77 Cal.App.5th at p. 948.)
In contrast, here the jury was fully and correctly instructed on provocative act murder according to the law at the time, including that Lee could be held
C. Lee Is Not Eligible For Relief On His Attempted Murder Conviction
In his opening brief, Lee states, “It is undisputed that appellant was convicted of murder and attempted murder under the provocative act theory of culpability.” Lee does not otherwise address his attempted murder conviction in his opening brief. To the extent Lee is suggesting he is entitled to relief under section 1172.6 for the attempted murder conviction because he was convicted under the provocative act theory, we disagree.
Setting aside whether there is such a thing as attempted provocative act murder, a proposition for which Lee cites no authority, the record makes clear Lee was not convicted under that theory. The procedural history as reflected in Lee I indicates Lee was convicted of the attempted murder of Nolasco, the security guard. Lee‘s jury was instructed on the following elements for that crime: “1. A direct but ineffectual act was done by one person towards killing another human being; and [1] 2. The person committing such act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” Absent from this instruction is any language regarding a third party responding with lethal force to provocation by Lee or an accomplice, as would be required under the provocative act doctrine.
In his reply brief, Lee appears to make a new argument that he was convicted of attempted murder as an aider and abettor, and that certain instructions could have led the jury to convict him without a finding that he acted with malice. This argument is forfeited for failure to raise it in the opening brief. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
The argument also fails on the merits. Lee‘s jury was instructed, “The persons concerned in the commission of a crime who are regarded by law as principals in the crime thus committed and equally guilty thereof include: [1] 1. Those who directly and actively commit the act constituting the crime, or [1] 2. Those who aid and abet the commission of the crime.” The instruction then explained, “A person aids and abets the commission of a crimе when he
As discussed above, the attempted murder instruction required that the perpetrator of the attempted murder “harbor[ ] express malice aforethought, namely, a specific intent to kill unlawfully another human being.” Assuming arguendo the jury convicted Lee not as a direct perpetrator, but for aiding and abetting an attempted murder (for example, Choi‘s firing at Nolasco), the jury necessarily found Lee had “knowledge of the unlawful purpose of the perpetrator,” that being “a specific intent to kill unlawfully another human being,” and aided and abetted “with the intent or purpose” of committing the crime. Thus, the jury necessarily found Lee intended to aid and abet an unlawful killing, that is, that Lee had an intent to kill, the very definition of express malice. (
Lee cites cases in which courts took issue with jury instructions for aiding and abetting second degree implied malice murder and first degree lying-in-wait murder, holding those instructions potentially permitted juries to convict aiders and abettors without a finding of malice. (People v. Langi (2022) 73 Cal.App.5th 972, 982-983; People v. Maldonado (2023) 87 Cal.App.5th 1257, 1266.) Lee does not explain how the jury instructions in his case are analogous to those in Langi and Maldonado such that those decisions are instructive. We note in Langi and Maldonado, the concern centered on the fact that the direct perpetrator of an implied malice murder or lying-in-wait murder need not harbor an intent to kill. (Langi, at p. 982; Maldonado, at p. 1266.) That concern is not present under the instructions given in Lee‘s case, which required the perpetrator of the attempted murder to “harbor[ ] express malice aforethought, namely, a specific intent to kill . . . .”
DISPOSITION
The order denying Kenny Inkwon Lee‘s petition under Penal Code former section 1170.95 is affirmed as to the conviction for attempted murder and reversed as to the conviction for murder. The matter is remanded, and the resentencing court is directed to issue an order to show cause under subdivision (c) of
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.